LCQ4: Interpretation of Article 104 of the Basic Law
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Following is a question by the Hon Claudia Mo and a reply by the Secretary for Constitutional and Mainland Affairs, Mr Raymond Tam, in the Legislative Council today (November 30):
Question:
At its Twenty-fourth Session on the 7th of this month, the Standing Committee of the Twelfth National People's Congress made an interpretation of Article 104 of the Basic Law (BL) (the NPCSC Interpretation). In this connection, will the Government inform this Council:
(1) as Article 104 stipulates that when assuming office, the public officers specified in the Article (namely the Chief Executive, principal officials, members of the Executive Council and of the Legislative Council, judges of the courts at all levels and other members of the judiciary) must, in accordance with law, swear allegiance to the "Hong Kong Special Administrative Region of the People's Republic of China" (SAR) (i.e. the only party to whom they swear allegiance is SAR), but the NPCSC Interpretation states that "[t]he taking of the oath stipulated by Article 104…is a legal pledge made by the public officers specified in the Article to the People's Republic of China and its Hong Kong Special Administrative Region" (i.e. there are two parties to whom they make the legal pledge, namely the People's Republic of China (China) and SAR), whether China, apart from SAR, is also a party to whom the aforesaid public officers swear allegiance when they take the oath upon assumption of office; if so, whether the authorities have assessed if Members' expression of support for "vindicating the 4 June incident" or "putting an end to the one-party dictatorship of the Communist Party" when they address this Council at its meetings will fall within the meaning of "engag[ing] in conduct in breach of the oath" in the NPCSC Interpretation and they therefore must "bear legal responsibility in accordance with law"; if they have assessed, of the details; if not, the reasons for that; and
(2) given that Article 67 of BL stipulates that permanent residents of SAR who are not of Chinese nationality may also be elected members of the Legislative Council and Article 92 of BL stipulates that judges and other members of the judiciary may be recruited from other common law jurisdictions, whether the authorities have assessed if the public officers who are not of Chinese nationality must also swear allegiance to China when they take the oath pursuant to Article 104 upon assumption of office; if they have assessed and the outcome is in the affirmative, of the justifications; if not, the reasons for that?
Reply:
President,
Article 104 of the Basic Law provides that "[w]hen assuming office, the Chief Executive, principal officials, members of the Executive Council and of the Legislative Council, judges of the courts at all levels and other members of the judiciary in the Hong Kong Special Administrative Region (HKSAR) must, in accordance with law, swear to uphold the Basic Law of the HKSAR of the People's Republic of China (PRC) and swear allegiance to the HKSAR of the PRC."
On November 7, the Standing Committee of the National People's Congress (NPCSC) adopted the interpretation of Article 104 of the Basic Law (the Interpretation). Article 1 of the Interpretation points out that "[t]o uphold the Basic Law of the HKSAR of the PRC" and to bear "allegiance to the HKSAR of the PRC" as stipulated in Article 104 of the Basic Law are the legal content which must be included in the oath concerned; while Article 3 of the Interpretation explains that the taking of the oath stipulated by Article 104 of the Basic Law "is a legal pledge made by the public officers specified in the Article to the PRC and its HKSAR, and is legally binding."
Having consulted the Department of Justice, our reply to each part of the question is as follows:
(1) The Interpretation aims to reiterate and explain clearly the meaning of Article 104 of the Basic Law. No change has been made to the content (including the oath content stipulated in the Article) or the legislative intent of the Article.
The Basic Law is enacted in accordance with Article 31 of the Constitution of the PRC. The aims of which are to provide a legal basis for the establishment of the HKSAR and implementation of the basic policy of "one country, two systems" in the HKSAR. The Basic Law is not only a national law but also a piece of constitutional legal document devised for the implementation of "one country, two systems" in the HKSAR. It is plainly obvious that the basic policy of "one country, two systems" and its implementation involve not only the HKSAR but also the PRC at the same time.
The Basic Law contains not only provisions related to the HKSAR, but also provisions regarding the affairs within the responsibility of the Central Authorities and regarding the relationship between the Central Authorities and the HKSAR. Moreover, Article 2 of the Basic Law provides that the executive, legislative and independent judicial powers, including that of final adjudication, enjoyed by the HKSAR are all authorised by the National People's Congress; and the powers exercised by public officers specified in Article 104 of the Basic Law after assuming office are exactly the powers authorised by the National People's Congress stipulated in Article 2 of the Basic Law. Therefore, it is impossible that upholding the Basic Law refers to only upholding those parts related to the HKSAR.
In view of the analysis above, it is impossible that the party to whom the oath is made under the legal pledge stipulated in Article 104 of the Basic Law on upholding the Basic Law is only limited to the HKSAR. Article 3 of the Interpretation only explains clearly that relevant public officers, in swearing to uphold the Basic Law and to bear allegiance to the HKSAR of the PRC, are making a legal pledge to both the PRC and its HKSAR. The Interpretation (including Article 3 of the Interpretation) does not change the oath content stipulated in Article 104 of the Basic Law. Hence, there is no question of "whether the party to whom the public officers swear allegiance is expanded", and there is no change to the legal rights and responsibilities of the relevant public officers arising from Article 3 of the Interpretation before or after the NPCSC adopted the Interpretation.
(2) In future, oath taking by public officers specified in Article 104 of the Basic Law (including those not of Chinese nationality) when assuming office will continue to be conducted in accordance with Article 104 of the Basic Law and the provisions of the Oaths and Declarations Ordinance.
Ends/Wednesday, November 30, 2016
Issued at HKT 14:20
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